With list of top judge nominees nearly ready, calls for progressive pick mount

Advocates rally in front of the Court of Appeals in Albany on Thursday, Oct. 3, to call on Governor Kathy Hochul to nominate a progressive jurist to serve as New York’s next chief judge. Photo via Center for Community Alternatives

By Jacob Kaye

With the governor set to soon receive a list of names for the state’s next top judge, a group of attorneys and advocates rallied in Albany last week to renew what is now becoming a familiar call.

The new coalition, known as the The Court New York Deserves, gathered in front of the Court of Appeals building in the state’s capital on Thursday to demand the next chief judge of New York be a jurist who would take the court in a less conservative direction, as it has been headed over the past several years.

The group called on Hochul, who will receive a list of seven candidates from the state’s Commission on Judicial Nominations later this month, to pick a candidate with a proven progressive background and one who has not spent the bulk of their legal career as a prosecutor.

Though one of the current six justices on the Court of Appeals was appointed by Hochul, the remaining five were appointed by Governor Andrew Cuomo, including several who have formed what has been described as a conservative voting bloc.

The bloc includes Justices Madeline Singas, Michael Garcia, former Chief Judge Janet DiFiore and Anthony Canataro, who is currently serving as the acting chief judge.

Advocates say that the group of justices have issued a number of conservative opinions that have expanded the rights of corporations, favored prosecutors, limited the rights of New Yorkers and contributed to mass incarceration. In the top court’s last judicial session, DiFiore, Singas, Canataro and Garcia voted together on 96 of the 98 decisions the court issued.

“This chief judge vacancy, at this moment, is a tremendous opportunity for New York,” said Peter Martin, the director of the Center for Community Alternatives, one of the groups in the Court New York Deserves coalition.

“Former Governor Cuomo packed the Court of Appeals with former prosecutors, and its decisions have reflected that,” he added. “In recent years, the court has repeatedly changed state law to favor the powerful – the government, corporations, landlords and more – at the expense of all other New Yorkers.”

The vacancy of the chief judge position – the chief judge serves not only as the top judge on the highest court in the state, they also serve as the leader of the state’s entire court system – was created when DiFiore abruptly announced her resignation over the summer.

DiFiore left the job with around three years left in her term, which would have ended when she reached the mandatory retirement age of 70 in 2025. By the time she retired in August, DiFiore had served one of the shortest terms of any chief judge appointed to a full term since 1974, the year the state constitution was changed to allow for chief judges to be appointed, not elected.

Though an investigation has yet to be made public, it was believed that her resignation came amid an ethics probe into the handling of a disciplinary case involving Dennis Quirk, the head of the court officers’ union.

In addition to the criticism DiFiore received for the court’s rulings, she received widespread condemnation for her actions surrounding pandemic – particularly, the court’s decision not rehire a majority of justice applying for recertification in 2020.

Under our last chief judge, the state’s highest court, the one we need to protect our rights from the U.S. Supreme Court, has been on the side of the powerful,” said Marvin Mayfield, of the Center for Community Alternatives.

“Now, we have an opportunity to change that,” he added. “The stakes could not be higher.”

Should Hochul nominate a more progressive judge, the court’s majority could swing in that direction. Justices Jenny Rivera, Rowan Wilson and Shirley Troutman – who Hochul nominated last year – proved to be a more liberal minority on the court in the final months of its most recent term.

The three-member minority issued a number of scathing dissenting opinions, including in the case which ruled that the state Democratic lawmakers had improperly drawn New York’s State Senate, Assembly and congressional lines. Should the next chief judge align more closely with Rivera, Wilson and Troutman, the progressive justices would be in the majority.

Hochul has done and said little to reveal her thinking behind the nomination.

In August, Hochul said that she would nominate the “best jurist I can find in the state of New York.”

“Regardless of any predispositions, a judge is expected to look at every case that comes in for them with a balanced eye,” she said. “We saw what happened in the Supreme Court when there was an intentionality behind selecting people who had a certain predisposition and look where we are today.”

The call from The Court New York Deserves echoes those made earlier this fall by a group of lawmakers led by Queens State Senator Michael Gianaris.

The lawmakers demanded that more public defenders be brought into the nomination process.

“The last Chief Judge list, for example, consisted of three long-time prosecutors, three partners at large commercial law firms, and one former administrative judge—but not one civil rights attorney, public defender, or tenant advocate,” the senators wrote in September. “Indeed, career advocates for vulnerable New Yorkers have been conspicuously absent from eight of the last ten lists the Commission has generated.”

Gianaris, the deputy majority leader, pushed for the Singas, a career prosecutor, to be confirmed several years ago and has since said that he did so because the system of confirming justices leaves little room for lawmakers to interject in the process.

In the September letter, Gianaris and the other lawmakers said that should the governor’s nominee be a career prosecutor, he’d consider voting against their confirmation.

While the Senate’s confirmation of Court of Appeals picks has a history of being pro forma, the letter’s signatories said that they intend to “closely scrutinize candidates’ understandings of how New York’s court system functions in practice, and their commitment to ensuring that it upholds the values of equal justice under the law.”

The Commission on Judicial Nominations will send its list of seven candidates to Hochul by Nov. 25.

A new chief judge will likely not be installed until early 2023, when the state legislature returns to session.